This blog presents news items and resources relating to trial advocacy and the legal system, with a focus on Washington State. It was developed to support the Trial Advocacy Program at the University of Washington School of Law, but now has a broader coverage and a wider audience. In addition to information about trials and trial practice, you'll find notes about appellate practice, the courts, access to justice, and related topics.

Thursday, March 31, 2005

Appellant argues that the trial court's termination of defense counsel's opening statement was an abuse of discretion and a violation of his due process right to a trial free of partiality and unfairness. . . . Although we find that the trial judge improperly limited counsel's opening statement, the error was harmless beyond a reasonable doubt. Prior to the termination of her opening statement, counsel was able to present her theory of defense and provide some information about the organization and nature of [a particular gang]. The jury received a reasonably detailed roadmap of defendant's case, and counsel was able develop the evidence and arguments during the remainder of the trial. Further, the district court minimized any appearance of partiality by instructing the jury that the admonition was a matter of procedure.

Bills concerning legal services for the poor -- on indigent defense (HB 1542) and indigent civil representation (HB 1747) -- passed the House unanimously and are now in the Senate. They are scheduled to have hearings in committee.

The legislature has enacted a law that makes available DNA testing to people convicted of felonies and serving time, under certain conditions: (a) DNA tests were excluded or the technology was inadequate at the time of the trial and (b) DNA evidence is material to the identity of the perpetrator of the crime (or to the identity of an accomplice or to sentence enhancement). SHB 1014, 2005 Laws chp. 5 (March 9, 2005)

The bill had broad support -- in fact, it passed both the House and the Senate unanimously. Supporters in hearings included representatives from the Washington Association of Prosecuting Attorneys, the Office of Public Defense. Prof. Jackie McMurtrie, from the UW's Innocence Project Northwest, also testified.

Washington Lawyer (the magazine of the DC Bar, not our Washington), has a great article about lawyers and blogs. Cover Story: Do You Blog?. It discusses the range of legal blogs available, how lawyers use them, and some ethical issues when lawyers blog. It concludes with a selected list of interesting blogs.

Wednesday, March 30, 2005

The defense in a Magnuson-Moss warranty case listed one of plaintiff's two attorneys as a witness and moved that he be excluded from the courtroom during other witnesses’ testimony. The trial court allowed him to be present (with some limitations -- e.g., the other lawyer conducted some examinations). The 9th Circuit, addressing this "novel question under Federal Rule of Evidence 615," finds that the district court did not abuse its discretion. Milicevic v. Fletcher Jones Imports, Ltd., --- F.3d ---, 2005 WL 697027 (9th Cir. March 28, 2005), Find Result - 2005 WL 697027. The 9th Circuit also upheld the district court's reduction of the plaintiff's attorneys' fees because it was not necessary to have both attorneys prepare for trial.

In an unpublished decision, the 9th Circuit upholds the exclusion of an investigatory report in an employment discrimination case. EEOC v. Columbia Alaska Regional Hosp., 2005 WL 658940 (9th Cir. March 18, 2005), , Find Result - 2005 WL 658940. What makes this unpublished decision more interesting than usual is that there is a dissent by Judge Wardlaw, who would have found the report admissible under FRE 803(8)(C).

In a prosecution for second degree child assault, the toddler's doctor testified that he told her that the defendant had hit him on the head. On appeal, the defendant challenged the statement's admissibility. Division 2 upheld it, under ER 803(a)(4) -- a statement made for purposes of medical diagnosis or treatment. The court found it unnecessary to assess the child's competence under child hearsay rules. The court also rejected the defendant's arguments about prosecutorial misconduct.State. v. Fisher, --- P.3d ---, 2005 WL 647359 (Wash. App. March 22, 2005) Find Result - 2005 WL 647359

My talisman is Rule 1 of the Federal Rules of Civil Procedure. Unlike the advocate, who is strategizing for a favorable result for the client, the judge seeks a result that will advance the “just, speedy, and inexpensive determination” of the litigation.

Seattle University is hosting an interesting CLE on April 8: "The Jury System: Preserve It or Destroy It." How-to CLEs are important, of course, but it's good to see one, like this one, that looks at history and comparative law as well.

Sunday, March 20, 2005

Wouldn't it be great to have an experience lawyer give you tips in segments short enough to pay attention to? The Texas Bar Assocation and Texas Young Lawyers Association have developed a free service called "Ten Minute Mentor". There are dozens of these short videos at the website -- 15 of them listed under Trials. I watched a few minutes of "A Recipe for Conducting an Effective Voir Dire." It's pretty good -- not a rival to the last two minutes of an exciting basketball game, but pretty darn good for instructional video.

SB 5685 and SHB 1747 would change create a new agency to oversee legal aid. Currently administration and oversight of state civil legal aid funding is performed by the executive branch Department of Community Trade and Economic Development. A newly created office in the judicial branch -- the Office of Civil Legal Aid -- would coordinate legal aid services with other justice system functions.

The legislature is considering bills related to indigent defense. SB 5531 and 2SHB 1542 would establish a system for the Washington State Office of Public Defense to distribute grants to counties to improve their systems for indigent defense. The funds would have to be appropriated; the bills themselves do not commit the funds.

County law libraries around the state are funded by court filing fees. Bills before the legislature -- SB 5890 and HB 1597 would enable local legislative bodies to increase the amount the law libraries receive from current fees and, upon a showing of need, to add a surcharge to filing fees.

WSBA Pres. Ron Ward wrote a guest editorial for the Seattle P-I outlining "the increasing inability of the court system to effectively deliver court services" and urging action by the legislature. State's justice system at great risk (March 2).

Earlier this month, the Washington State Bar Association gave its Local Hero Award to attorneys David F. Stobaugh and Stephen K. Strong and the law firm of Bendich, Stobaugh and Strong, P.C. Their pro bono work helped pass two pieces of legislation:

Thursday, March 17, 2005

Over 20 years after his convictions for first-degree murder and burglary, Blufford Hayes obtains habeas relief.

A key witness at the trial was an associate who had felony charges pending against him. The prosecutor and defense counsel had negotiated a deal that the charges would be reduced to misdemeanors after he testified at the trial, but they were careful not to tell the witness about the deal, so that when he was asked he could testify truthfully that he had not made a deal. The court summarized:

In short, the State contends that it is constitutionally permissible for it knowingly to present false evidence to a jury in order to obtain a conviction, as long as the witness used to transmit the false information is kept unaware of the truth.The State is wrong. Napue, by its terms, addresses the presentation of false evidence, not just subornation of perjury.

Further, the court held that the violation was material.

The court noted:

this case is not merely about a peculiar circumstance. As we have noted, this is not the first time we have been confronted in recent years with schemes to place false or distorted evidence before a jury. Our criminal justice system depends on the integrity of the attorneys who present their cases to the jury. When even a single conviction is obtained through perjurious or deceptive means, the entire foundation of our system of justice is weakened.

The dissent agreed as to the violation but did not think the violation would have affected the jury's verdict and hence was not material.

Tuesday, March 15, 2005

OK, this is a tangent from Trial Ad per se, but some of you may specialize in criminal law. If so, you might be interested in a blog about Sentencing Law and Policy, from Professor Douglas A. Berman of Ohio State University's law school.

SB 5654 prohibits the posting of personal information about criminal justice officials -- including judges, prosecutors, and public defenders -- on the web if the dissemination of the personal information poses an imminent and serious threat to the official's safety or the safety of that person's immediate family and the threat is reasonably apparent to the person making the information available on the world wide web to be serious and imminent. It also creates a private cause of action for the official whose information was published.

HB 1784 is a similar bill in the House. The Senate bill has already been through committee.

A truck driver was killed when a train hit his truck as he was crossing railroad tracks on a gravel road that led from the highway to a grain elevator. In a wrongful death and survivorship action, a jury awarded the plaintiff over $6 1/2 million.

The defendant railroad appealed, raising a number of issues about evidentiary rulings. Did the district court err in excluding evidence and testimony about the angle at which the truck approached the tracks? (This would make a difference in comparative negligence.) Did the district court err in excluding the defense's proferred expert economist who would have disputed the plaintiff's expert's testimony concerning hedonic damages? (The judge thought that the second expert's testimony was only for the purpose of attacking the ruling that the first expert's testimony was admissible.)

Washington HB 1262 would amend the statute concerning pay for people serving as judges pro tempore in superior court. According to the House Judiciary Committee bill report, there are some occasions -- particularly in rural counties -- when someone elected to a court of limited jurisdiction (serving part-time) ALSO is appointed a judge pro tem in superior court. The existing statute prohibits active judges from being compensated when they are judges pro tem, but doesn't address the situation part-time judges serving pro tem on their days off.

The bill has passed the House and is now in the Senate. Bill information is here.

Friday, March 11, 2005

In 2002, the Center on Lawyers, Civil Justice, and the Media organized a conference entitled "What We Know and Do Not Know about the Impact of Civil Justice on the American Economy and Polity." Leading empirical researchers from across the country attended the conference and presented papers on a variety of subjects, including law and economic growth, the empirical predicates for successful securities markets, medical malpractice, consumer bankruptcies, attorneys' fees, and litigation costs. The articles were later published in a symposium issue of the Texas Law Review.

A new study examines medical malpractice in Texas: Stability, Not Crisis: Medical Malpractice Claim Outcomes in Texas, 1988-2002. A working copy is posted here.

The researchers are Bernard Black, U. Texas; Charles Silver, U. Texas; David A. Hyman, U. Illinois, and William M. Sage, Columbia U. The study was funded by the University of Texas School of Law, Center on Lawyers, Civil Justice, and the Media.

Excerpts from the abstract:

Using a comprehensive database of closed claims . . . , this study provides evidence on a range of issues involving medical malpractice litigation, including claim frequency, payout frequency, payment amounts, defense costs, and jury verdicts. The data present a picture of remarkable stability in most respects and slow, predictable change in others. We find no evidence of the medical malpractice crisis that produced headlines over the last several years and led to legal reform in Texas and other states. The rapid changes in insurance premiums that sparked the crisis appear to reflect insurance market dynamics, largely disconnected from claim outcomes. . . . Jury verdicts showed no significant trend.

Thursday, March 10, 2005

At least one of the sports law bloggers is a law student at Harvard. See post of Oct. 14, 2004.

Speaking of law students, the press didn't focus much on the fact that Rick Neuheisel was once one himself. He attended the University of Southern California (while he was coaching at UCLA). Percy Allen, Visionary Coach, Hard-Hitting Charm, Seattle Times, Jan. 11, 1999, at C1. (Available on LexisNexis, Westlaw, and the Seattle Times website). He is a member of the Arizona bar and an (inactive) member of the District of Columbia Bar.

Wednesday, March 9, 2005

In a products liability case against Ford Motor Company, in limine rulings excluded evidence that the plaintiff had been drinking and did not have his seatbelt on at the time of the accident.

Ford's attorney alluded to both excluded facts in his opening statement. The district court granted a mistrial.

The court imposed monetary sanctions on the attorney and held him in contempt. It also revoked his pro hac vice status, both in that case and prospectively for his lifetime. (Another factor was the attorney's failure to disclose in his pro hac vice application that he had been disciplined by another court for failing to comply with the court's rules or orders.)

Monday, March 7, 2005

The February issue of the KCBA Bar Bulletin had an op ed on the federal Lawsuit Abuse Reduction Act (H.R. 4571, which passed the House but not the Senate). The piece was co-authored by James R. Murray (Gordon Murray Tilden LLP in Seattle), one of the UW's Trial Advocacy instructors. [Note post corrected 4/27/05.]

Saturday, March 5, 2005

In Obrey v. Johnson, 400 F.3d 691 [citation added 4/1], 2005 WL 502861 (9th Cir. March 4, 2005), Find Result - 2005 WL 502861, an employment discrimination case, the court reviewed the district court's exclusion of expert statistical evidence and testimony by several coworkers, finding, in each case that the district court erred.

The court then discussed its standard for determining when error results in sufficient prejudice to warrant a new trial.

[W]hen reviewing the effect of erroneous evidentiary rulings, we will begin with a presumption of prejudice. That presumption can be rebutted by a showing that it is more probable than not that the jury would have reached the same verdict even if the evidence had been admitted.

Id. at *9. In this case, the court concluded:

We thus cannot state that it is more probable than not that the jury was unaffected by the erroneous exclusion of the plaintiff's principal evidence. Accordingly, we hold that the district court's erroneous exclusion of the Dannemiller study, the testimony of Mr. Toyama, and the anecdotal testimony of three Shipyard workers was an abuse of discretion requiring reversal. The erroneous exclusion was not harmless.

If you are thinking of going solo or starting your own firm when you graduate, or if you are already a solo practitioner or in a small firm, you should read MyShingle, a blog for solos and small law firms. MyShingle focuses on a variety of topics important to solo attorneys and and small firms. But any lawyer or law student can benefit from her review of professional responsibility issues and legal ethics cases.

Defense counsel moved to dismiss four of the six counts of a Section 1983 action. Alas, they cited a case that was no longer good law because of a subsequent U.S. Supreme Court case, and they missed another case that was directly on point for a different issue.

Oops.

The judge (Judge Gene E.K. Pratter) denied the motion and let the lawyers know that she was not at all pleased by their work.

If the Motion to Dismiss and the accompanying Brief in Support had displayed but a single example of less than exemplary research or analysis, it would have gone unaddressed here inasmuch as occasional oversights, while disappointing, are understandable, generally innocent, and sometimes unavoidable. However, here, the incidents of deficiencies are too numerous to ignore and too fundamental to excuse. Inasmuch as defense counsel are seasoned and experienced attorneys who know well their obligations as advocates, including those set forth in Rules 1.1, 3.1, 3.2, 3.3 and 5.1 of the Rules of Professional Conduct, the Court looks forward to an improved, heightened standard of submissions from counsel as thiscase proceeds.

Friday, March 4, 2005

The legislature is considering a bill (HB 1291) that would enable doctors to apologize or express sympathy to an injured patient (or the patient's family member) without having the statement admissible in a lawsuit.

Here's the key language:

(2) In a civil action against a health care provider for personal injuries which is based upon alleged professional negligence, or in any arbitration or mediation proceeding related to such civil action:

(a) Any and all statements, affirmations, gestures, or conduct expressing apology, fault, sympathy, commiseration, condolence, compassion, or a general sense of benevolence; or

(b) Any and all statements or affirmations regarding remedial actions that may be taken to address the act or omission that is the basis for the allegation of negligence; which were in the past or are made by a health care provider to the injured person, a relative of the injured person, or a representative of the injured person and which relate to the discomfort, pain, suffering, injury, or death of the injured person as the result of the alleged professional negligence are not admissible as evidence.

The bill also would establish a patient safety account in the state treasury, funded by health care licensing fees ($2 per professional for individuals; $2 per bed for institutions) and 1% of certain attorney fees in health care litigation.

A number of states have passed such laws. See, e.g., Steven Keeva, Law and Sympathy: Apology Reforms Cost Little But Contribute Much to Clients' Healing, ABA J., Aug. 2004, at 74, available on LexisNexis and Westlaw.

HB 2126 would provide accommodations for dependent persons and vulnerable adults who are witnesses and victims of crimes. The procedures parallel those currently available for child witnesses and victims. For example, they would be able to testify via closed circuit television in certain circumstances.

Thursday, March 3, 2005

The government sought to remove an alien (a conditional permanent resident) because of his alleged participation in alien smuggling.

One issue: could the government rely on a hearsay statement from a witness who was unavailable because the government had deported her?

Although the rules of evidence are not applicable to immigration hearings, * * *, the constitutional and statutory guarantees of due process require that " 'the government's choice whether to produce a witness or to use a hearsay statement [not be] wholly unfettered.' "

The theme of this trial has really turned out to be everybodys [sic] mistaken but the defendant, Niccole Charles; or, oh, what a tangled web we weave when first we practice to deceive.. . .Circumstantial evidence is fact from which you can infer from reasonable experience. The reasonableness of someone's testimony. Think about it, it [sic] what's reasonable? Everybody's mistaken but Ms. Charles?

Now, again, witnesses can be mistaken, that does happen, but to believe Ms. Charles, you have to believe they're mistaken just not on a few things, they're mistaken on just about everything and on pretty much major things.

The court affirmed, remarking:

Although a prosecutor commits flagrant misconduct by arguing that in order to acquit a defendant, the jury must find that the State's witnesses are either lying or mistaken, * * * a prosecutor may properly draw inferences "from the evidence as to why the jury would want to believe one witness over another." * * *Furthermore, "where a jury must necessarily resolve a conflict in witness testimony to reach a verdict, a prosecutor may properly argue that, in order to believe a defendant, the jury must find that the State's witnesses are mistaken."

In her boyfriend's house, the defendant told police that the meth they found was hers. Later she said it was her boyfriend's, and she had just been covering for him. At trial, the prosecutor elicited testimony from an officer about whether he believed the defendant when she said the drugs were hers. The defense objected, but the prosecutor came back to this several times, including in closing argument. Division 2 reversed and remanded for a new trial. State v. Jungers, 2005 Wash. App. LEXIS 279 (Wash. App. Feb. 15, 2005) (published in part -- and the prosecutorial misconduct part is what's published),Get a Document - by Citation - 2005 Wash. App. LEXIS 279

Students and supervising attorneys take note:

n3 A Rule 9 intern, supervised by a deputy prosecutor, appeared on behalf of the State for the suppression motions and trial. The record does not reflect what actions, if any, the supervising attorney took after the trial court had stricken the opinion and after the Rule 9 intern asked the officer his opinion of Jungers' credibility.

Division 2 orders a new trial because of opinion testimony about a child's credibility from (a) her pediatrician and (b) a detective who gave her a competency examination. The issues were not raised at trial, but the court allows them on appeal: improper opinion testimony violates a constitutional right.

Wednesday, March 2, 2005

The Office of the Insurance Commissioner has ordered the state's largest med mal insurance carrier to refund physicians $1.3 million (plus interest) in excess premiums charged in 2003. OIC News Release

The article mentions a new study released yesterday by the state Office of Insurance Commissioner that presents data on closed medical malpractice claims in the last 10 years (July 1994 to June 2004). The Insurance Commissioner's press release summarizes:

The number of medical malpractice claims increased at an annual rate of 4.9 percent.

The average amount of compensation per claim increased at an annual rate of 4.1 percent.

Twenty-seven percent of the claims were closed with an indemnity (compensation) payment to a claimant.

Sixty-one percent of the claims were closed with defense costs, such as attorney or expert witness fees.

3,248 claims were closed without any compensation payments or defense costs.

Two percent of the total paid claims resulted in compensation payments of over $1 million.

Claims with defense costs increased at an annual rate of 5.3 percent.

Defense costs increased at an annual rate of 6.4 percent.

Sixty-seven percent of the claims that incurred defense costs resulted in no compensation payment.

Of the 10,073 claims, 50 were decided by a jury in favor of the plaintiff.

SALT LAKE CITY, Feb. 14, 2004 – In a unanimous decision, the American Bar Association House of Delegates, the ABA’s 546-member policy-making body, during the association’s Midyear Meeting in Salt Lake City today adopted a set of principles designed to improve jurors’ experiences while serving.

Overall, our hearings support the disturbing conclusion that thousands of persons are processed through America’s courts every year either with no lawyer at all or with a lawyer who does not have the time, resources, or in some cases the inclination to provide effective representation. All too often, defendants plead guilty, even if they are innocent, without really understanding their legal rights or what is occurring. Sometimes the proceedings reflect little or no recognition that the accused is mentally ill or does not adequately understand English. The fundamental right to a lawyer that Americans assume apply to everyone accused of criminal conduct effectively does not exist in practice for countless people across the United States.

Id. at iv.

The committee heard witnesses from -- and wrote up summaries of -- 22 states, including Washington.

There's a 12-page memo analyzing the new federal class action law on the ABA's website. The memo is by Scott L. Nelson Co-Chair, Class Actions and Derivative Suits Committee, ABA Section of Litigation. That's not to say that it expresses the views of the ABA, any of its sections, etc. -- but it does suggest that the author is someone who knows a thing or two about his subject.